Latest legal developments in the matter of the terrorist attack against the AMIA building in Buenos Aires in 1994

This paper briefly discusses the latest legal developments in the matter of the brutal terrorist attack against the AMIA Jewish community building in Buenos Aires on August 18, 1994, which killed 85 people and injured hundreds.

A few days ago, on January 27, Argentina and Iran entered into a “Memorandum of Understanding” providing, among others, for the establishment of a commission – so called the “Commission for the Truth” – to investigate that terrorist attack.

This commission will review the records of the Argentine and Iranian criminal judicial proceedings pertaining to the case, in particular the incriminatory evidence gathered against each of the Iranian suspects. The commission’s mandate, however, will be limited to issue “recommendations on how to proceed with the case within the legal and regulatory frameworks of the parties”. This means that the commission will have no authority whatsoever to prosecute the crime and impose penalties on its instigators and perpetrators.

And not only that, but also the commission will unduly interfere with, and cause additional delay to, those ongoing Argentine criminal judicial proceedings. According to that memorandum, Argentine judge Rodolfo Canicoba and Argentine prosecutor Alberto Nisman will be compelled to interrogate the Iranian suspects in Tehran instead of Buenos Aires, which is unacceptable at this stage of the proceedings. The suspects were not wanted merely to be questioned in the context of a preliminary investigation, they were wanted to face trial in Argentina. And Canicoba and Nismam will be prevented from interrogating the suspects until the commission is appointed and all of its members are able to gather in Tehran for the same purposes.

More, the memorandum does not provide for any kind of international supervisory authority or observer (whether from the UN or otherwise) to oversee the fairness of the commission’s procedures and its independence.

The commission will probably focus on discrediting and frustrating Nisman’s efforts to bring the Iranian suspects to justice. On October 25, 2006, Nisman delivered an 800-page indictment report incriminating the Iranian government’s upper echelons and Hezbollah as the instigators and perpetrators of the crime respectively. On the basis of this indictment, Canicova issued arrest warrants for the eight Iranian suspects.

Nisman’s evidence appeared so credible that Interpol upheld Argentina’s request and issued “red notices” for six out of the eight Iranian suspects, despite the Iranian National Bureau’s fierce opposition. In issuing “red notices”, it should be noted, Interpol does not restrict itself to “rubber stamp” to a member state’s request, it rather takes a review of it and the incriminatory evidence presented therein.

Iran did not cooperate with Interpol’s red notices, let alone handed over the suspects to Argentina. In fact, Iran and Argentina have explicitly provided that their memorandum would be referred it to Interpol, surely with the intention of calling for the withdrawal of the red notices issued. Rumors existed that Iran was on the brink of being suspended from Interpol for continuously flaunting and breaking its rules.

As a logical corollary of the memorandum, Argentina would also formally withdraw its extradition request to Iran for the suspects. This concerted Argentine-Iranian effort caught many for surprise, as it came when much of the world was focused on isolating Iran and its nuclear ambitions.

Chances are indeed very high that the commission’s findings will eventually contradict Nisman’s report. Although the commission’s findings are not binding in nature, they may well underpin Iran’s efforts to appear itself more respectable before the international public opinion, and also to block any possible fresh extradition efforts in future, whether by a new Argentine government or by the international community. All seems to indicate, unfortunately, that the commission’s primary purpose is not to find the truth about the AMIA attack but rather to cover it up.

In 1999, “Memoria Activa”, a Buenos Aires-based non-profit organization consisting of relatives and friends of the crime’s victims, filed a complaint against Argentina before the Inter American Human Rights Commission (IAHRC), which is an organ of the Organization of American States (OAS). It followed that, in 2004, the IAHRC warned Argentina for failing to conduct an efficient and responsive judicial investigation into the crime. Argentina then assumed the commitment to prosecute the crime efficiently and responsively from then on. I hope that Memoria Activa will now reopen the complaint (or file a fresh one) on grounds that Argentina has breached these commitments and promises made to the IAHCR.

It would also be worthy to explore other remedies available under Argentine and international law in an attempt to thwart the commission and bring those suspected of the crime to face trial before a real court of law in Argentina or, alternatively, in a third country.

There are observable international case law developments on this regard. Suspects of crimes involving large-scale international terrorism have been handed over for trial before ad hoc international tribunals with seat in third countries. For example, the Special Tribunal for Lebanon (STL) which is an ad hoc UN-sponsored international tribunal with seat in the Hague, the Netherlands, whose primary mandate is to hold trial for the suspects of the terrorist attack in Beirut in 2005, which killed 23 people including the former prime minister of Lebanon, Rafiq Hariri, and injured many others. Another example would be the delocalized Scottish national court, with seat in the Hague, too, whose primary mandate was to hold trial for the Libyan suspects of the bombing of the Pan Am flight 310 in 1998 over Lockerby, Scotland.

The International Court of Justice (ICJ), in procedures relating to that Lockerbie case, hinted that the states’ obligation to prosecute or extradite may be identified as an incipient rule of international customary law inasmuch as crimes of international terrorism are concerned. After all, the United Nations Security Council (UNSC) in countless occasions held that international terrorism poses a threat to world peace and security. The AMIA attack also underscores the urgent need to define, codify and bring the crimes of international terrorism into the jurisdiction of the International Criminal Court (ICC) for their effective prosecution at a global scale.

Under the circumstances, the AMIA matter should be urgently referred to the UNSC where Argentina should be admonished for failing to prosecute the crime in accordance with international minimum standards (as the IAHRC did before) and Iran for failing to extradite the suspects to Argentina or a third country to face trial before a real court of law.

This works basically focuses on legal matters, however, almost everyone is aware that the memorandum between Argentina and Iran reveals a new potential – and very serious – line of conflict and insecurity in the Western Hemisphere. Leaving the AMIA crime unresolved should not be an option for the US and world democracies.